ARIF MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1884/2020

[2025] HKCFI 4492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1884 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 22 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeals Board (the “TCAB”) dated 10 September 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 30 November 2018 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The TCAB Decision only concerned three of the four grounds under the USM as the Applicant’s claim based on torture risk had been made and rejected by the DOI in 2013.  The rejection was affirmed by the TCAB in 2013.  The Applicant is not seeking judicial review against this previous decision by the TCAB and it is long out of time anyway.

3.  The Applicant requested for a hearing but he did not attend the scheduled hearing on 4 September 2025.  The court record shows that enquiry was made with the Immigration Department on 7 August 2025 as the Applicant’s correspondence address and contact number were found to be incomplete/invalid.  There was no response from the Immigration Department up to the time of the scheduled hearing.  Upon further enquiry, I was informed that the Applicant had actually since February 2025 not reported to the Immigration Department as required, and in effect remained incommunicado since.

4.  In this situation, I bear in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as decision to forego the right to the requested oral hearing and the court can deal with the application on paper.

5.  Although the above is premised upon the applicant having received notice of the oral hearing and in the present case it does not seem to be the case, the fact that the Applicant making himself uncontactable by any means is sufficient to ground the view, which I take, that he has chosen to forego the right to the requested hearing.  Simply put, he had made it impossible to inform him of any progress of this application, including the time of the hearing he had requested, and such disregard shows that he did not care, or at least was not serious, about exercising any right to an oral hearing.

6.  I therefore decided to proceed to deal with this application on paper notwithstanding his absence in such circumstances.

Background

7.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that, if he was returned, he would be harmed by his relatives with whom he had a land dispute and people affiliated with an opposing and more powerful political party.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.  In the Form 86, the Applicant raised a set of complaints against the TCAB Decision, alleging that it was procedurally unfair and unreasonable or irrational.  In his affirmation filed in support of this application, the Applicant alleged that he was not given an opportunity to put forth his submissions at an oral hearing or invited to make written submissions, and that the TCAB had relied on unofficial news and outdated cases.

10.  Looking at the TCAB Decision, the TCAB had before it all the materials supplied by the Applicant in both his torture claim in 2013 and his claim in 2018 [7].  Applying the correct principle in relation to the need for an oral hearing [40-44], the TCAB thoroughly considered the issue and came to the view that the appeal can be justly determined without an oral hearing on the bases that the TCAB did accept the factual basis of the Applicant’s claims [44], there was no aspects of the claim that the Applicant could further usefully contribute [44-45] and what the Applicant had presented to the DOI was already done with the benefit of legal representation [45].  I therefore see no valid challenge against the decision to deal with the appeal on paper by the TCAB.

11.  The COI considered by the TCAB came from recognised sources, including the UK Home Office and the Australian Department of Foreign Affairs and Trade [footnote 22-36, 40-42] and the cases applied by the TCAB were all still applicable and represent the state of law [10-31].

12.  With all the above in mind, the TCAB thoroughly analysed the Applicant’s case and evidence placed before it, and in turn each of the three applicable grounds under USM, and came to the conclusion that the grounds were not made out, and that both state protection and internal relocation were available to the Applicant [48-130].

13.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

14.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1